Estudios de Deusto (Dec 2014)
Applicable Law to international consumer contracts: the conflit of laws system in «Rome I» Regulation
Abstract
The Rome I Regulation, of June 17, 2008, has modified the system of designation of the governing law of the international consumer contracts contained in the precedent regulation, the Rome Convention of June 19, 1980. The reform has approached basically two questions: the scope of material application of consumer contracts and the mechanism of determination of their lex causae. In the first point, the concept of consumers’ contract is broaden, extending it for all the contracts celebrated between a professional and a consumer, without the limitation of the Rome Convention to which these took as an object the «supply of corporal goods or services». In the second aspect, the governing law of the contract remains determined by an objective system, which prefers the classification of the habitual residence of the consumer as presumably a more favorable norm for this one. This objective designation can be modified by the freedom of choice of the parties, though limited by the imperative dispositions on protection of the consumer contained in the law of his State of habitual residence. With it, the legislator forms a conflict-of-laws system much more predictable than the previous one, that favors the juridical safety and avoids the division of the contract, but that turns out to be questionable from the point of view of the best protection of the consumer. Finally, the formal validity of the contract surrenders only to the law of the habitual residence of the consumer, supporting the system already received by the Agreement of Rome, which turns out to be open to criticism, for limiting the possibilities of validity of the contract.Published online: 09 December 2014
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